Point of Law : Non compliance of requirement under Order XXXII CPC - Procedural law dealing with requirements to be complied with in institution of a suit by minor or a person of unsound mind, to proceed with or to defend a suit on behalf of a minor or a person of unsound mind - In short, Order XXXII CPC is a self contained Code by its nature dealing with procedural law to represent a minor or a person of unsound mind in a legal proceeding.

JUDGMENT :

The judgment and decree of the trial court were set aside by the first appellate court on the sole reason that there is non-compliance of the requirement under Order XXXII CPC to institute a suit through a next friend. The suit was instituted by the next friend of a deaf and dumb lady after obtaining sanction under Order XXXII CPC in I.A. No.872/2012. The order of sanction was not challenged by the defendant, but proceeded with the suit and participated in the trial till the passing of judgment and decree by the trial court. The sanction granted under Order XXXII CPC to institute a suit through a next friend was also taken up by framing three issues by the trial court and answered positively, but the suit was dismissed by adjudicating the disputes involved. In the Appellate Court, the sanction granted under Order XXXII CPC to institute a suit through next friend alone was taken up and found that there is non-compliance of the requirement under Order XXXII Rule 15 CPC and set aside the judgment and decree by allowing the appeal and remanded the matter back to the trial court to decide the suit afresh. It is against the said judgment and decree of the first appellate court remanding the matter back to the trial court, the defendant came up.

2. It is submitted that it is not proper on the part of the appellate court to set aside and remand the matter back to the trial court for fresh adjudication without adjudicating the correctness of the finding rendered on the issues involved in the suit. Before going into the said question, it is necessary to address the scope and ambit of Order XXXII CPC, the sole ground taken up by the appellate court to set aside the judgment and decree of the trial court.

3. Order XXXII CPC is an enabling provision, precautionary in nature and intended to protect the interest of a person of minor or a person of unsound mind, when it is found necessary to represent either a minor or a person of an unsound mind, in a legal proceeding. As the minor is deemed incapable of prosecuting or defending a suit by himself, it is necessary that his interests in the suit should be protected through a competent person. Such a person is, in the case of a minor plaintiff, called his next friend and in the case of a minor defendant, his guardian ad litem or, guardian for the suit. Once permission was granted under Order XXXII CPC, it would acquire the character of a final order, though an interlocutory application is permissible for that purpose. The scope of enquiry under Rule 15 of Order XXXII cannot be equated with that of an enquiry or inquisition under the provisions of special enactment – Indian Lunacy Act or Mental Health Act. The word 'next friend' is nowhere defined in the Code. But the concept is well explicit from Rule 1 of Order XXXII CPC. It is the nomenclature given to a person, who represents a minor or a person of unsound mind in a suit or proceeding. A conjoint reading of various Rules under Order XXXII CPC would make it clear that it really deals with a pre-requirement to be complied with to effectuate valid institution of a suit or to defend a suit for and on behalf of a minor or a person of unsound mind. Provisions were made to deal with the appointment of a guardian or to institute a suit through a next friend, removal of guardian, retirement of next friend, appointment of new one and also for furnishing security so as to meet the cost of proceeding or court fee payable etc. till the end of proceeding, including appeals, revision, execution of decree etc. It is the procedural law dealing with the requirements to be complied with in the institution of a suit by minor or a person of unsound mind, to proceed with or to defend a suit on behalf of a minor or a person of unsound mind. In short, Order XXXII CPC is a self contained Code by its nature dealing with the procedural law to represent a minor or a person of unsound mind in a legal proceeding. Hence the proceedings under Order XXXII CPC has to